| People v McCaw |
| 2016 NY Slip Op 01510 [137 AD3d 813] |
| March 2, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Tesfa McCaw, Appellant. |
Thomas T. Keating, Dobbs Ferry, NY, for appellant.
James A. McCarty, Acting District Attorney, White Plains, NY (Hae Jin Liu andSteven A. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Neary, J.), rendered April 10, 2013, convicting him of criminal possession of a weaponin the second degree and criminal possession of marijuana in the third degree, upon ajury verdict, and imposing sentence. The appeal brings up for review the denial, after ahearing, of that branch of the defendant's omnibus motion which was to suppressrecorded statements he made to a codefendant.
Ordered that the judgment is affirmed.
On November 2, 2011, Hopeton Campbell was driving a car owned by thedefendant, Tesfa McCaw, while the defendant was seated in the passenger seat. The carwas traveling 20 miles per hour over the posted speed limit. Upon stopping the car, aWestchester County Police Officer observed Campbell and the defendant switch seats.The defendant, who exited the driver's seat, explained to the officer that he switchedseats with Campbell because Campbell did not have a valid driver license. When theofficer approached the car and spoke to Campbell, the officer, based upon his trainingand experience, detected a strong odor of marijuana emanating from the inside thevehicle. Campbell informed the officer that he had smoked marijuana earlier, and thatthere was marijuana inside the vehicle. The defendant and Campbell were then placedinside the officer's patrol car, as the officer commenced a search of the subject vehicle.While in the back seat of the patrol car, McCaw and the defendant, who had not yet beenadvised of their Miranda rights (Miranda v Arizona, 384 US 436 [1966]),conversed with each other. Their conversation was recorded by the patrol car's clearlyvisible front dashboard camera that had also recorded the officer's interaction with thedefendant and Campbell at their car. While the officer was inspecting the subject vehicle,the defendant and Campbell were expressing their concern to each other that the officerwould find a gun in the vehicle and that they would face a gun charge if it were found.The officer ultimately recovered more than half a pound of marijuana from the frontpassenger seat, the floor in front of that seat, and the glove compartment. The officer alsorecovered an operable .45 caliber semi-automatic gun, loaded with nine cartridges, underthe rear bench seat.
The defendant was jointly tried with Campbell. The recording of the defendant's andCampbell's conversation in the patrol car was admitted into evidence at trial, and atranscript thereof was approved by the Supreme Court to be used as an aid to the jury.The defendant was convicted [*2]of criminal possessionof a weapon in the second degree and criminal possession of marijuana in the thirddegree. The defendant appeals.
The defendant contends that the recording of the patrol car conversation should havebeen suppressed because it violated his Miranda rights. Miranda vArizona (384 US 436 [1966]) requires that before custodial interrogation by a lawenforcement official can begin, a suspect must be advised concerning his or her right toremain silent and of his or her right to counsel, and that, "[i]f the individual indicates inany manner, at any time prior to or during questioning, that he [or she] wishes to remainsilent, the interrogation must cease" (id. at 473-474; see People v Ferro,63 NY2d 316, 322 [1984]). The subject recording was not the product of a lawenforcement interrogation or instigated by law enforcement conduct, but instead, was arecording between codefendants outside the presence of the officer who stopped them.Under these circumstances, the defendant's Miranda rights did not attach, andconsequently, the recording did not constitute a Miranda violation.
The defendant's contention that the subject recording constituted illegal warrantlesseavesdropping is without merit because he and Campbell had no reasonable expectationof privacy while inside the patrol car (see People v McFarland, 106 AD3d 1129 [2013]; seealso United States v Webster, 775 F3d 897 [7th Cir 2015]; United States vClark, 22 F3d 799 [8th Cir 1994]; United States v McKinnon, 985 F2d 525[11th Cir 1993]).
The defendant also challenges the admission into evidence of the subject recordingon the ground that it was insufficiently audible. Contrary to his contention, the SupremeCourt, upon holding an audibility hearing, providently exercised its discretion inadmitting the recording into evidence. "An audiotape recording should be excluded fromevidence if it is so inaudible and indistinct that a jury must speculate as to its contents"(People v Bailey, 12 AD3d377, 377 [2004] [internal quotation marks omitted]; see People v Harrell,187 AD2d 453 [1992]; People v Morgan, 175 AD2d 930, 932 [1991]; Peoplev Papa, 168 AD2d 692 [1990]). Even where tape recordings are inaudible in part, solong as the conversations can be generally understood by the jury, such infirmities go tothe weight of the evidence and not to its admissibility (see People v Lewis, 25 AD3d824 [2006]). While portions of the subject recording were inaudible, there was noreal danger that the factfinder would be left to speculate as to what transpired, especiallywhere, as here, the defendant and Campbell are clearly heard expressing their concernthat the officer would find the gun in the subject vehicle. Moreover, the court providentlyexercised its discretion in allowing the jury to use a transcript as an aid in listening to thesubject recording at trial (seePeople v Redmond, 41 AD3d 514, 515 [2007]; People v Wilson, 207AD2d 463, 464 [1994]).
The defendant's contention that the officer who stopped his vehicle lacked probablecause to search it without a warrant is not preserved for appellate review (seeCPL 470.05 [2]), and is, in any event, without merit. A vehicle may be searchedwithout a warrant pursuant to the "automobile exception" if law enforcement officialshave probable cause to believe that the vehicle "contains contraband, evidence of [a]crime, a weapon or some means of escape" (People v Blasich, 73 NY2d 673, 678[1989]; see People v Galak, 81 NY2d 463, 467 [1993]; People v Henderson, 57 AD3d562, 564 [2008]; People vMartin, 28 AD3d 583, 584 [2006]). Contrary to defendant's contention, theofficer had probable cause to search his vehicle without a warrant because, after lawfullystopping the speeding vehicle, the officer, with the aid of experience and training,smelled a strong odor of marijuana emanating from inside the vehicle, and Campbellindicated the vehicle contained marijuana and admitted to smoking marijuana earlier thatday (see People v Chestnut, 36 NY2d 971, 973 [1975]; People v Glover, 84 AD3d977, 978 [2011]; People vHughes, 68 AD3d 894, 895 [2009]; People v Feili, 27 AD3d 318, 319 [2006]; People v Parris, 26 AD3d393 [2006]; People vPeterson, 22 AD3d 770 [2005]).
The defendant's contention that the Supreme Court should have tried him separatelyfrom Campbell is not preserved for appellate review (see CPL 470.05 [2]). In anyevent, the court's decision to try the defendant and Campbell together was a providentexercise of discretion (see CPL 200.40 [1] [b]; People v Mahboubian, 74NY2d 174, 183 [1989]; People v Bornholdt, 33 NY2d 75, 87 [1973]).
Contrary to the defendant's contention, defense counsel provided meaningfulrepresentation (see People v Benevento, 91 NY2d 708, 712 [1998]; People vBaldi, 54 NY2d 137, 147 [1981]; [*3]People v Dolan, 2 AD3d745 [2003]; People v Groonell, 256 AD2d 356, 357 [1998]).
The defendant's challenge to the legal sufficiency of the evidence with respect to thecharge of criminal possession of a weapon in the second degree is not preserved forappellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]; People vGray, 86 NY2d 10, 19 [1995]; People v Kearney, 25 AD3d 622 [2006]; People vButler, 265 AD2d 487 [1999]). In any event, viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we findthat it was legally sufficient to establish the defendant's guilt of criminal possession of aweapon in the second degree beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony,and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; Peoplev Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt with respect to criminal possession of a weapon in thesecond degree was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
Contrary to the defendant's contention, the Supreme Court's jury charge on theautomobile presumption adequately advised the jury that it could ignore the presumption(see People v Waters, 30AD3d 681 [2006]; People v Martinez, 257 AD2d 479 [1999]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contention, raised in point II of his main brief, is withoutmerit. Dillon, J.P., Dickerson, Cohen and Duffy, JJ., concur.